The National Energy Policy Development Group was a group, created by Executive Order on January 29, 2001, that was chaired by Vice President Richard Cheney. The group, commonly referred to as the "Cheney Energy Task Force," produced a National Energy Policy report in May 2001. [1] In a cover note to George W. Bush, Cheney wrote that "we have developed a national energy policy designed to help bring together business, government, local communities and citizens to promote dependable, affordable and environmentally sound energy for the future." [2] (pdf) The composition of the task force, according to the report, was confined to government officials.

Meetings

However, according to media reports at the time, energy industry executives participated in the Task Force. In particular, those identified as having been involved included then-Enron President and Chairman Kenneth Lay and lobbyists Haley Barbour and Marc Racicot.

In April 2001, the Natural Resources Defense Council, an environmental advocacy group, sought to obtain the records of the task force meetings. [3] In July 2001 Judicial Watch filed suit on the grounds that the administration was not "in compliance with the Federal Advisory Commission Act (FACA), which mandates that certain documents, task force members, meetings, and decision-making activities be open to the public." [4] Judicial Watch argued that the acting as energy lobbyists -- "regularly attended and fully participated" in the group's meetings held behind closed doors, and were in fact members of the group. The Sierra Club also filed suit. (The two actions were later merged.) "At issue is whether Cheney allowed private energy lobbyists and big-name campaign contributors to participate in the work of the group, and if so, whether that information should be made public," UPI reported. [5]

The organizations claim the documents will show the extent to which the task force staff met secretly with industry executives to craft the Bush administration's energy policies, such as drilling for oil in the Arctic National Wildlife Refuge and weakening power plant pollution regulations.

Participants

Between late January and April 4, 2001, when "representatives of 13 environmental groups were brought into the Old Executive Office Building for a long-anticipated meeting" with Cheney, a "confidential list prepared by the Bush administration shows that Cheney and his aides had already held at least 40 meetings with interest groups, most of them from energy-producing industries. By the time of the [April 2001] meeting with environmental groups, according to a former White House official who provided the list to The Washington Post, the initial draft of the task force was substantially complete and President Bush had been briefed on its progress."[1] "In all, about 300 groups and individuals met with staff members of the energy task force, including a handful who saw Cheney himself, according to the list, which was compiled in the summer of 2001."

An earlier document obtained by the Washington Post in 2005 "was based on records kept by the Secret Service of people admitted to the White House complex."[2] "This person said most meetings were with Andrew Lundquist, the task force's executive director, and Cheney aide Karen Y. Knutson."[3]

James J. Rouse, former Exxon vice president. In 2005 Rouse "denied the meeting took place."[15] In 2007, Rouse was revealed to be "One of the first visitors, on Feb. 14, [2001] ... then vice president of Exxon Mobil and a major donor to the Bush inauguration".[16]

Recommendation on Coal

According to the Washington Post, "Jack N. Gerard, then with the National Mining Association, had a meeting with Lundquist and other staffers in February. He urged the administration to give the Energy Department responsibility for promoting technology for easing global warming and to keep the issue away from the Environmental Protection Agency, which could issue regulations on greenhouse gas emissions. The administration adopted that position."[21]

Legal Challenges

Initially, the General Accounting Office, the investigative arm of Congress, tried to make the records of the policy group public. When its legal action failed, the GAO dropped the attempt.

However, a Washington-based legal advocacy group, Judicial Watch, continued its own suit in federal court against the policy group, its members and several private individuals, alleging that the defendants had failed to comply with the Federal Advisory Committee Act.

FACA compels the public disclosure of all advisory committee reports, records and documents, but does not apply to those groups composed solely of "federal officials."

Documents online at Judicial Watch for JUDICIAL WATCH, INC. v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP Complaint filed against NEPDG, Office of the Vice President, for compliance with the Federal Advisory Committee Act, 5 U.S.C. App. 2 ("FACA"), and the Freedom of Information Act.

1 April 2004: U.S. District Judge Paul L. Friedman rejected arguments by Bush administration lawyers that employees from the U.S. Department of the Interior and the U.S. Department of Energy can claim special confidentiality privileges for the period when they worked for the task force, which held private meetings with energy industry representatives as it crafted a national energy policy. [9]

1 April 2004: "The government must release more documents related to the White House task force that Vice President Dick Cheney convened in private to develop a national energy policy, a federal judge says. ... The order Wednesday from U.S. District Judge Paul Friedman covers material that the Energy Department, Interior Department and other federal agencies had refused to produce since a similar federal court ruling two years ago. ... Some documents released so far show energy executives met with high-level Energy Department officials, but the records Friedman ordered released now 'could be the most telling,' said Sharon Buccino, a lawyer for the Natural Resources Defense Council. 'It's kind of the top of the food chain.'" [10]

24 June 2004: "The Supreme Court today rejected the Bush Administration's argument that it has a constitutional right to keep the workings of the Cheney Energy Task Force secret. The Court refused to rule on whether Vice President Cheney must produce documents in Sierra Club's suit and sent the case back to the Court of Appeals." [11], [12]

Release of Documents

The order Wednesday from U.S. District Judge Paul Friedman covers material that the Energy Department, Interior Department and other federal agencies had refused to produce since a similar federal court ruling two years ago.

The latest order could cover some material that is the subject of a separate lawsuit now before the Supreme Court. That case also involves documents about the inner workings of the energy task force headed by Vice President Dick Cheney and housed in his office.

Commentary

"As Linda Greenhouse recently pointed out in The New York Times, the legal arguments the administration is making for the secrecy of the energy task force are 'strikingly similar' to those it makes for its right to detain, without trial, anyone it deems an enemy combatant. In both cases, as Ms. Greenhouse puts it, the administration has put forward 'a vision of presidential power . . . as far-reaching as any the court has seen.'

"That same vision is apparent in many other actions. Just to mention one: we learn from Bob Woodward that the administration diverted funds earmarked for Afghanistan to preparations for an invasion of Iraq without asking or even notifying Congress.

"What Mr. Cheney is defending, in other words, is a doctrine that makes the United States a sort of elected dictatorship: a system in which the president, once in office, can do whatever he likes, and isn't obliged to consult or inform either Congress or the public."

"Today's case is a study in the evils of premature litigation. It's a lesson in why the cheerleader who doesn't make the squad throws everything off when she appeals to the gym teacher, then the principal, and then the secretary of education, instead of just sucking it up and joining the band. Vice President Cheney was sued by two watchdog groups--Sierra Club[13] and Judicial Watch[14]--for information about the outsiders who served on his energy policy task force in 2001. The watchdogs contend that 'task force' was just a series of cozy get-togethers in which energy executives and lobbyists, including Kenneth L. Lay, took turns sitting on Cheney's lap, licking his ear, and requesting special favors. The final report issued by the commission sort of reads that way. When Cheney was ordered to produce the rosters and minutes of these meetings as part of pretrial discovery, he appealed that order all the way up to the U.S. Supreme Court."

"So, how do you get to the Supreme Court? Mandamus, mandamus, mandamus. The government leapfrogged over the usual procedures and filed for extraordinary relief--in the form of a writ of mandamus--in the appeals court. And when the D.C. Circuit Court of Appeals denied that writ, noting that the case needed to be fully decided in the lower court first, Cheney took the up elevator to the Supreme Court instead of the down elevator back to the trial court.

"This becomes one of the key issues in Cheney v. U.S. District Court for the District of Columbia. (That's right, he's named the lower court as his opponent.) It's a bedrock legal principle that courts of appeals don't decide issues over which they have no jurisdiction, and that courts of appeals don't decide cases when there has been no final decision from a lower court, unless there's a pretty good reason."

External articles

2003

"Washington: Appeal Sought On Energy Documents,"New York Times, September 17, 2003: "The Bush administration told a federal appeals court that it would ask the Supreme Court to review a decision that requires Vice President Dick Cheney to give the Sierra Club documents from his task force on energy. Last week, the full United States Court of Appeals for the District of Columbia Circuit let stand a panel's decision that the government had no basis to ask the appeals court to block a lower court's ruling that called for disclosure of information. Mr. Cheney has invoked executive privilege in keeping the documents secret."